JUDGMENT : Heard Mr. P. Deka, learned counsel for the petitioner and Mr. N.N.B. Choudhury, learned counsel for the respondent. 2. By this petition under Section 482 Cr.P.C., the petitioner has prayed for setting aside and quashing the Order, dated 10.06.2019, passed in C.R. Case No. 5606C/2017 under Section 138 of the N.I. Act, by the learned Judicial Magistrate, 1st Class, (for short ‘J.M. 1st Class’), Kamrup (M) at Guwahati. 3. The petitioner’s contention, in a nutshell, is that the respondent/complainant filed the above noted C.R. Case No. 5606C/2017 under Section 138 of the N.I. Act against the petitioner/accused for dishonour of a cheque amounting to Rs.27,23,495.36/-issued by him in favour of the respondent/complainant. In the said case, the learned J.M., 1st Class, at Guwahati, on consideration of the initial deposition of the respondent/ complainant, by order, dated 31.03.2018, took cognizance of the aforesaid offence and issued summons to the petitioner/accused. The petitioner/accused accordingly appeared before the learned trial Court on 11.06.2018 and denied commission of the offence. As such, the matter was fixed for cross-examination of the P.Ws 1 and 2. On 14.08.2018, P.W. 1 was cross-examined and discharged. Thereafter, when the matter was pending for cross-examination of P.W.2, namely Manab Gohain, he filed additional/second evidence on affidavit, dated 03.10.2018 and the learned trial Court fixed 10.12.2018 for cross-examination of P.W. 2 although he had filed his evidence on affidavit on 24.01.2018. Therefore, on 10.12.2018, the petitioner/accused filed a petition being Petition No. 4310 raising objection against filing of second/additional evidence on affidavit by P.W. 2 and prayed not to keep the additional evidence on record and proceed further with the evidence on affidavit filed by him (P.W. 2) on 24.10.2018. The aforesaid petition was partly allowed and the said witness (P.W. 2) was cross-examined on the basis of his evidence on affidavit filed on 24.01.2018 and accordingly, he was discharged. The petitioner has contended that P.W.2’s second evidence on affidavit was received in contravention of the provisions under Section 311 Cr.P.C. and the basic principle of the criminal jurisprudence. The aforesaid petition was partly allowed and the said witness (P.W. 2) was cross-examined on the basis of his evidence on affidavit filed on 24.01.2018 and accordingly, he was discharged. The petitioner has contended that P.W.2’s second evidence on affidavit was received in contravention of the provisions under Section 311 Cr.P.C. and the basic principle of the criminal jurisprudence. According to the petitioner, the learned trial Court failed to appreciate that the petition was filed on 10.12.2018 and the prayer in part was already allowed and P.W. 2 was cross-examined on the basis of his evidence on affidavit, dated 24.01.2018 and as such, additional evidence on affidavit filed on 03.10.2018, cannot be sustainable as one witness cannot file two evidence/additional evidence on affidavit at his own sweet will. Hence, the instant petition praying to set aside the impugned order as stated above. 4. Mr. P. Deka, learned counsel for the petitioner, submits that the learned trial Court committed errors in law and facts as the petition raising objection against receiving the second evidence of P.W. 2 was filed on 10.12.2018 and the same was partly allowed, whereby P.W. 2 was cross examined on the basis of the evidence on affidavit, dated 24.01.2018, and as such, the impugned order rejecting the aforesaid petition is contrary to the order, dated 10.12.2018 and further, without any leave being granted under Section 311 Cr.P.C. to the respondent/complainant. 5. Controverting the argument of Mr. P. Deka, learned counsel for the petitioner, Mr. N.N.B. Choudhury, learned counsel for the respondent/complainant, contends that Section 311 Cr.P.C. read with Section 165 of Evidence Act confer vast and wide powers on the Magistrate to elicit all necessary materials, so as to arrive at the truth for just and proper disposal of the case. Mr. Choudhury further submits that additional evidence on affidavit of P.W. 2 was tendered to bring on record a number of documents to unfold the truth of the complainant’s case at a time when the said witness was not cross-examined by the petitioner/accused herein and therefore, no prejudice was caused to him. In this context, Mr. Choudhury relied on the judgments rendered by the Hon’ble Supreme Court in the case of Zahira Habibulla H. Sheikh and Anr. Vs. State of Gujrat and Ors., reported in (2004) 4 SCC 158 and P.Chhaganlal Daga Vs. M. Sanjay Shaw, reported in (2003) 11 SCC 486. 6. In this context, Mr. Choudhury relied on the judgments rendered by the Hon’ble Supreme Court in the case of Zahira Habibulla H. Sheikh and Anr. Vs. State of Gujrat and Ors., reported in (2004) 4 SCC 158 and P.Chhaganlal Daga Vs. M. Sanjay Shaw, reported in (2003) 11 SCC 486. 6. For better appreciation of the above issue, I feel it apposite to extract hereinbelow the impugned order, dated 10.06.2019: “10.06.2019 Complainant is present. Accused is absent with steps vide petition No. 1360/2019. Allowed. Today is the date fixed for order on petition No. 4310 filed by the accused wherein the accused has raised objection against the further evidence of PW 2 Manab Gohain. Heard. Perused. The counsel for the accused submitted that the PW 2 Manab Gohain had already filed his written evidence on 24.01.2018 but again on 03.10.2018 the PW 2 filed further evidence. The counsel for the accused further submitted that the complainant did not file any application under Section 311 CrPC and the PW 2 had filed further evidence in order to improve the case. Heard. Perused. It will be relevant to quote Section 311 of the CrPC which reads as follows:- “311. Power to summon material witness, or examine person present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case.” Section 311 CrPC shows that the Court has a vast power to recall and re-examine a witness during the course of a trial or inquiry or other proceeding under the CrPC provided that the same is necessary for proper adjudication of the case. while exercising power under Section 311 CrPC, paramount consideration of the court is to do justice to the case and court can examine a witness at any stage, even if same results in filing up lacuna or loopholes. Very object of Section 311 is to bring on record evidence not only from the point of view of accused and prosecution but also from the point of view of the orderly society. Very object of Section 311 is to bring on record evidence not only from the point of view of accused and prosecution but also from the point of view of the orderly society. It is also well established that the exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof of such facts which lead to a just and correct decision of the case, this being the primary duty of a criminal court. Calling a witness or re-examining a witness already examined for the purpose of finding out the truth in order to enable the court to arrive at a just decision of the case cannot be dubbed as “filling in a lacuna in the prosecution case” unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused resulting in miscarriage of justice. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused. Moreover, the accused side will get ample opportunity to crossexamine the complainant’s witnesses. Considering the above the petition No. 4310 is rejected. Fixing 17.07.2019 for evidence.” 7. It is noticed from the case record that the petitioner/accused completed further cross-examination of P.W. 1 on 14.08.2018 and accordingly, he was discharged. P.W. 2 Manab Gohain’s evidence on affidavit, as P.W. 2, dated 24.01.2018, was received. The petitioner/accused was allowed to cross-examine P.W. 2 on the evidence on affidavit, dated 24.01.2018 and accordingly, he was discharged vide order, dated 10.12.2018, without disposing the petitioner/accused’s objection petition No. 4310, dated 10.12.2018, referred to above, fixing the next date 21.01.2019. On 21.01.2019, although both parties were present, the learned trial Court heard the complainant/respondent’s side on the aforesaid objection petition No. 4310, dated 10.12.2018. and fixed 11.03.2019 for order. However, by the above impugned order, dated 10.06.2019, the objection was finally disposed off rejecting it. On 21.01.2019, although both parties were present, the learned trial Court heard the complainant/respondent’s side on the aforesaid objection petition No. 4310, dated 10.12.2018. and fixed 11.03.2019 for order. However, by the above impugned order, dated 10.06.2019, the objection was finally disposed off rejecting it. The aforementioned impugned order, dated 10.06.2019, shows that on that day, the respondent/complainant was present and the petitioner/accused was absent and thereby rejected the objection petition citing the provision of Section 311 Cr.P.C., which empowers the trial Court to recall and re-examine a witness during the course of trial or inquiry, when felt necessary for proper adjudication of the case. 8. Undoubtedly, under Section 311 Cr.P.C., which is discussed in detail in the impugned order, the Court is empowered to re-examine a witness for the just and proper disposal of the case. Here, P.W. 2 was already examined, cross-examined by the petitioner/accused and discharged and thereafter, the respondent/complainant, because of certain inadvertent omission or for further consideration of the matter, voluntarily tendered his additional evidence on affidavit without leave of the learned trial Court. Thus, the complainant, in fact, sought to reopen the evidence of P.W. 2 and the learned trial Court receiving his evidence on affidavit cancelled his (P.W. 2) discharge order, dated 10.12.2018. The complexity of the issue arose at this point, because the learned trial Court discharged P.W. 2 after completion of cross-examination, giving rise to application of Section 311 Cr.P.C. at its subsequent stage. In Zahira Habibullah Sheikh(Supra),the Hon’ble Supreme Court held that the power under Section 311 Cr.P.C. is a power given to the Court not to be merely exercised at the bidding of any one party/person, but the powers conferred and discretion vested are to prevent any irretrievable or immeasurable damage to the cause of society, public interest and miscarriage of justice. In P.Chhaganlal Daga(Supra),the Hon’ble Supreme Court reiterated the principle, quoting para No. 7 of Rajendra Prasad Vs. Narcotic Cell, reported in (1999) 6 SCC 110 , that ‘the adage ‘to err is human’ is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a Court cannot fill up’. The Court should well be guided by such fair principles of criminal jurisprudence to further the cause of pure justice. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a Court cannot fill up’. The Court should well be guided by such fair principles of criminal jurisprudence to further the cause of pure justice. It may be mentioned that once a witness is discharged, he ceases to be a witness in the case. Therefore, the Court is required to take due care while exercising the power under Section 311 Cr.P.C. for reopening the evidence and it should not be allowed at the instance of the complainant/prosecution, without prior leave, to fill up the lacuna or by the defence/accused or to the disadvantage or prejudice of the accused and further, the additional evidence should not be received as a disguise for retrial. In the instant case, what it appears from the impugned order is that it suffers from two lapses, firstly, no prior leave of the learned trial Court was obtained assigning reasons for filing the additional evidence of P.W. 2 after he was discharged and secondly, as stated above, the impugned order was passed without even affording opportunity of hearing to the petitioner/accused. For the above stated reasons, the impugned order is set aside and quashed with direction to the respondent/complainant to file a petition seeking leave of the Court under Section 311 Cr.P.C., if so advised and thereupon, after hearing of both sides, shall pass a fair and reasoned order thereon, in accordance with law. Both parties shall appear before the learned trial Court on 23.07.2020 and receive instructions. Accordingly, the petition stands allowed. This disposes off the petition.